What is Power of Attorney?
Power of attorney is authority given to another person to act on your behalf while you are living. The legal document wherein you appoint the person is called a “power of attorney.” The person you appoint to help you in the power of attorney document is called the “attorney-in-fact” or “agent.” If the document explains that your agent can act on your behalf even when you are incapacitated, the document is termed a durable power of attorney. Most powers of attorney are durable; indeed the very purpose (usually!) of creating a power of attorney is to ensure that your agent can act during any incapacitation you may experience. A power of attorney lawyer can help you create a power of attorney tailored to your specific situation.
Should I have a power of attorney?
Most people will benefit from having a financial power of attorney (also called a general durable power of attorney or DPOA) and a medical power of attorney (also called a health care durable power of attorney or medical DPOA). The financial power of attorney authorizes your agent to help you with managing your bank accounts and investments, bills, credit, taxes, charitable giving, and other financial aspects of your life. The medical power of attorney allows your medical agent to help you with medical decision-making and tasks.
Powers of attorney are set up ahead of time, but are often used when you become incapacitated—meaning that you are unable to handle your own financial or medical tasks due to injury, illness, or some other reason. If you become incapacitated and you do not have a power of attorney, there may be no one with legal authority to handle these matters, and the only option may be to have a judge appoint a guardian or limited guardian for you.
How to choose an agent
A common question is: Who should be my agent in my powers of attorney? Most of the time, clients choose family or close friends in this role. Choose a primary appointee for each power of attorney (financial power of attorney and medical power of attorney), and alternates in case your primary appointee cannot fulfill the role when the time comes. Clients commonly choose their spouse, domestic partner, or an adult child as their primary agent.
Be sure to choose people who have good judgment and who you believe will faithfully act in your best interest. Afterall, your agent is in a fiduciary role, and must act for your benefit under the law.
If you are unsure about choosing an agent, schedule a consultation with us for guidance. You may want to consider appointing a professional attorney-in-fact in your powers of attorney. In the Seattle area, a few options are Ohana Fiduciary Corporation, WE Trust Company, and Profiducia; but there are others to choose from.
Your agent may wish to seek out legal advice and reference helpful guides in order to fulfill their duties.
Can I have two or more people be my agents at the same time?
Some clients wonder if they can appoint two or more people to be their co-agents. And the answer is yes, you can. However, you may want to consider whether you should. We know that sometimes you want more than one person to share the responsibility for your medical or financial decision-making. That’s understandable; but consider that we’ll need to make it clear whether they need to act jointly and unanimously or whether they can act independently—and if they must act jointly, what happens if they disagree about what to do?
Keep in mind that the power of attorney documents are used to show institutions like banks and hospitals that the agent has legal authority to act—and sometimes those institutions don’t like working with co- agents since it makes the document a bit more complicated to interpret.
What are “springing powers?”
If your power of attorney has springing powers, it means that the agent cannot officially act for you unless conditions in the document are met. Usually, it means that the agent cannot act unless your treating doctor has diagnosed you to be incapable of managing your financial or medical situation.
A springing power allows you to maintain exclusive control over your financial and medical decision-making until you are incapacitated. A lot of clients like that since they only want help if they truly need it. However, as you are considering springing powers, note that it may be quite difficult to get someone to the doctor who is experiencing cognitive or physical incapacity. And even if a person does get to their doctor’s office, practically speaking, it can be difficult to get a written diagnosis of incapacity.
It can be good to consider simply making the powers of attorney effective immediately so that if you do need help, your agent can start helping without having to jump through too many hoops.
What should I do with the power of attorney documents?
Your powers of attorney must be signed by you and either notarized or witnessed/signed by two independent witnesses who watch you sign the document. Once your documents are properly signed, keep the originals in a safe place in your home. They need not be kept in a safe or safe deposit box; just keep them in an out-of-the-way place where they can be easily found when needed. You should consider telling your primary and alternate agents that you have powers of attorney and that you have appointed them to be your agents. Some people choose to give copies of the powers of attorney to their agent; others do not share copies. If you choose not to give copies to your chosen appointees, at least tell them where the documents are located so they can find them if need be.
Consider letting your doctor’s office know that you have a medical power of attorney. They may ask you to keep a copy in your medical record in case you ever become incapacitated.